Bernie Bytes: NFL wins big in concussion settlement

I’ll suspend the political correctness and state the obvious here: in the matter of the $765 million settlement of the concussion-related suit filed by retired players, the NFL won in a rout.

Several reasons:

1. Some legal analysts suggested that the players could have won $2 billion or more in damages had the players pushed this all the way. And others projected a doomsday scenario that would have meant the end of the NFL as we know it. After all, this is a gladiator sport – and if you can’t keep the players healthy, and you’re going to get sued and be forced to pay damages every time a player suffers a concussion, then how could you possibly continue to operate?

Well, that’s over now.

Yes, $765 million is a big number, but it breaks down to about $24 million per team. Goodness, NFL owners and GMs waste more money than that on stupid free-agent contracts each year.

Moreover, the league gets to make this go away on a payment plan; half the settlement is due within three years but the NFL can allocate the other half over 17 years. This is a league that collects nearly $10 billion a year in revenue, and that annual haul will increase in the coming years. This payout is tip-jar money for NFL owners.

2. The league didn’t have to admit liability. Direct words from the court document: “The settlement does not represent, and cannot be considered, an admission by the NFL of liability, or an admission that plaintiffs’ injuries were caused by football.”

Of course, that’s preposterous; the NFL didn’t agree to pay $765 million because the 32 owners are sweet, wonderful and generous humanitarians. This was obviously an acknowledgement by the league, but legally it doesn’t matter.

The NFL had already gone on the offensive by instituting new rules to protect players. This helps in three ways: (A) increased player safety is the right thing to do; (B) the NFL's new safety initiatives puts the league in a more positive light; (C) the new guidelines will help ward off future concussion-related suits.

And the NFL’s PR machine already is working its magic to portray the league as a proactive, sensitive organization that cares deeply about the players’ health.

Before settling, the former players had made good progress in winning the PR battle. I don’t think anyone out there is a fan of dementia. I don’t think anyone wants to see these old football heroes suffer horribly as they grow old while NFL owners are growing their franchise values and individual wealth.

By agreeing to settle, the former players ceded the PR platform to commissioner Roger Goodell and associates. And this plays to the NFL’s strength; the league can spin away and engage in more image enhancement.

3. The settlement will keep the league’s private files and documents hidden away. As part of the suit the plaintiffs’ attorneys hoped to gain access to all of the NFL’s secrets on the concussion issue _ with a particular interest in the timeline. What did the league know and when did the league know it? How many years did the NFL keep playing by the old guidelines despite possessing damning information on the impact of brain injuries? What, if anything, did the NFL conceal while jeopardizing the health of its players?

This settlement keeps the secrets safe and secure and out of public view.

As former NFL Players Association president Kevin Mawae told reporter in Tennessee:

“The biggest win for them is they don’t have to disclose anything, any of the information they they may have had since the late ’80s or early ’90s on concussions. They may have had information back in 1994 that the players could have at least known all these years, but they paid to keep those that closed. There’s no disclosure anymore. Information is power and when they didn’t have to give that up (in court), you retain that power.”

4. This settlement inoculates the NFL against future concussion suits from current and recently retired players. That was made clear in the written view of Judge Layn Phillips, who brokered the settlement.

This from Judge Phillips:

“For a variety of reasons, the underlying theory of this lawsuit about what took place in the past would be difficult to replicate in the future,. Everyone now has a much deeper and more substantial understanding about concussions, and how to prevent and manage them, than they did 20 or even 10 years ago, and the information conveyed to players reflects that greater understanding.

“In addition, the labor law defenses asserted by the NFL would represent a very substantial barrier to asserting these kinds of claims going forward. The combination of advances in medical research, improved equipment, rules changes, greater understanding of concussion management, and enhanced benefits should, and hopefully will, prevent similar lawsuits in the future.”

In other words: today’s players are well aware of the risks, and on top of that the league has taken measures to decrease the risk.

5. By settling the NFL shifts the focus back to the field, back to the games, back to making money. The NFL is the most popular sports league in North America. And by making this go away, nothing stands in the way of the league's non-stop escalation.

Now ...

As for the retired players, we certainly can understand why they settled now instead of marching all the way into a courtroom showdown.

Many retired players are in legitimate need of expensive medical care are related costs, and they couldn’t afford to wait much longer. The NFL had the resources and power to drag this suit out for many years, and that would have kept the former players from getting the necessary help and relief.

The retired players who require the most attention will receive immediate assistance, and that’s great. The settlement also achieved another necessary outcome: former players that joined the suit in a blatant money grab won’t be able to dip into the settlement pool; they’ll have to prove that they’re debilitated. Good luck to the retired NFL punters that wanted to jump on the backs of the truly needy retirees to scoop up some free money.

Future suits are possible, but they won’t be easy to win. With the new rules in place a plaintiff would have to prove that an NFL team (and the league) knowingly ignored those guidelines and allowed a concussed player to continue competing.

There’s one gap: as Pro Football Talk pointed out, there was no Collective Bargaining Agreement between the league and the NFL Players Association between 1987 and 1993, and that presents a potential loophole.

The NFL wants to push future concussion-related grievances to arbitration in a process covered by the current CBA. Because there was no CBA from 1987-1993, players from that era could try bypass arbitration by suing directly. But given the NFL’s deep and imposing financial war chest, the league could stall and maneuver and keep such cases in limbo for many years. The real potential of a long, protracted fight and massive legal bills could dissuade players from making the challenge.